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2013 DIGILAW 1325 (KAR)

B. T. Rangappa v. Athur Rehaman

2013-11-22

N.K.PATIL, R.B.BUDIHAL

body2013
JUDGMENT N.K. Patil, J. This appeal by the appellants-claimants is arising out of the judgment and award dated 03/07/2010 passed in MVC No.444/2008, by the Senior Civil Judge and Member, Additional Motor Accident Claims Tribunal, Hiriyur, (hereinafter referred to as ' Tribunal' for short). 2. By its judgment and award, the Tribunal has dismissed the petition filed by the appellants on account of the death of the deceased Dr. Harish, in the road traffic accident. Being aggrieved by the dismissal of the claim petition, the appellants have presented this appeal. 3. The appellants have filed a claim petition before the Tribunal under Section 166 of M.V. Act On account of the death of the deceased Dr. Harish in the road traffic accident that occurred on 19.2.2008 at about 6.30 a.m. when he was going on the Motor cycle bearing Reg.No.KA.16.H.4562 from Hiriyur towards Yaraballi near 103 milestone, Challakere road involving the Lorry bearing Reg.No.KA.04.AC.2889 which was stopped in the middle of the road without any caution and signal. The said claim petition had come up for consideration before the Tribunal. The Tribunal, after hearing the learned counsel for both the parties and after appreciating the oral and documentary evidence available on file, has dismissed the said petition. Being aggrieved by the said judgment and award, the appellants have presented this appeal. 4. We have heard learned counsel appearing for appellants and learned counsel appearing for Insurer. 5. The submission of the learned counsel appearing for appellants Sri. K.T. Gurudev Prasad is that, the Tribunal has erred in dismissing the claim petition on the sole ground that the chargesheet is filed against the deceased who was the rider of the motor cycle, without considering the contents of Ex.P2-Spot Mhazar and Ex.P5-Copy of statement of the cleaner. Further, he submits that the statement of the cleaner was recorded by the Police authorities after investigation and no opportunity was afforded to the appellants to examine the driver or cleaner to establish that due to violation of traffic rules since the lorry was parked in the middle of the road without giving any indication and the accident had occurred at 6.30 a.m. in the month of February and at that time, there would a strong mist. But this aspect of the matter has not been considered or appreciated by the Tribunal and it has proceeded to dismiss the claim petition contrary to the oral and documentary evidence. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be set aside and the matter may be remitted back to the Tribunal for reconsideration, to enable him to examine the driver and cleaner of the lorry bearing Reg.No.KA.04.AC 2889. 6. As against this, learned counsel for Insurer, inter-alia, contended and substantiated that the impugned judgment and award passed by the Tribunal is just and proper and after due appreciation of the oral an documentary evidence available on file and therefore, it does not call for interference. 7. After hearing the learned counsel for both the parties and after careful perusal of the impugned judgment and award passed by the Tribunal, including the original records available on file, it emerges that, the occurrence of the accident and the resultant death of the deceased Dr. Harish are not in depute. The only dispute is, whether the accident had occurred due to rash and negligent driving by the deceased who was the rider of the motor cycle or there was a total violation of traffic rules and regulations by the driver of the lorry since it was parked in the middle of the left side of the road. Further, it is significant to note that, the reasoning given by the Tribunal in para-9 of its judgment regarding consideration of Ex.P5 to the effect that, the statement of cleaner of the lorry goes to show that the lorry was stopped on the left side of the road and on that day Harish Babu drove the motor cycle in rash and negligent manner and dashed the same to the hind portion of the lorry and caused the accident. But the said statement has not been considered properly by the Tribunal and there is no application of mind by the Tribunal as rightly pointed out by the learned counsel for the appellants, that too, when this is a case of death of a young and energetic Doctor who has died in the accident and his wife has committed suicide due to shock and agony. But the Tribunal ought to have taken the judicial note of this aspect of the matter and ought to have given reasonable opportunity to the appellants to make out their case against the driver, owner and insurer of the lorry. Taking all these factors into consideration, we are of the considered view that the impugned judgment and award passed by the Tribunal cannot be sustained end is liable to be set aside and the matter requires reconsideration by the Tribunal without going further into the merits and merits of this case and if any view is expressed it would affect the case of respective parties. 8 Having regard to the facts and circumstances of the case as stated above and in the light of the submissions made by learned counsel for both the parties, without expressing any opinion on the merits and demerits of this case, it would be appropriate to direct the Tribunal to reconsider the matter afresh and pass orders in accordance with law. 9. For the foregoing reasons, the appeal filed by the appellants is allowed. The impugned judgment and award dated 03/07/2010 passed in MVC No.444/2008, by the Senior Civil Judge and Member, Additional Motor Accident Claims Tribunal, Hiriyur, is hereby set aside and the matter stands remitted back to the Tribunal for reconsideration afresh, with a direction to pass appropriate order, in accordance with law, after affording reasonable opportunity of hearing to the appellants and insurer, personally or through their counsel and dispose of the same, as expeditiously as possible, giving top priority since it is a case of death. The appellants and Insurer are permitted to file necessary applications before the Tribunal to lead additional evidence both oral and documentary, within four weeks from the date of receipt of a copy of this judgment. In the event, if such applications are filed by the parties, within the time stipulated above, the Tribunal is directed to receive the same and proceed further and dispose of the same, as expeditiously as possible, in terms of the above directions issued by this Court. All the grounds urged in this case by the respective parties are kept open. Registry is directed to return the entire original records to the jurisdictional Tribunal forthwith.